| People v Monk |
| 2020 NY Slip Op 04490 [186 AD3d 623] |
| August 12, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v James Monk, Appellant. |
Philip H. Schnabel, Chester, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (William C. Ghee of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (William L.DeProspo, J.), rendered January 8, 2019, convicting him of criminal possession of a controlledsubstance in the third degree and criminal possession of a controlled substance in the fourthdegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
On October 12, 2018, the defendant pleaded guilty to criminal possession of a controlledsubstance in the third degree and criminal possession of a controlled substance in the fourthdegree. As part of the plea agreement, the defendant was promised a sentence of a determinateterm of imprisonment of 5 years plus a period of postrelease supervision of 2 years on eachcount, with the sentences to run consecutively. The agreement included a component pursuant towhich the sentence would be served as a 10 year sentence of parole supervision pursuant to CPL410.91, to be served subsequent to the defendant's completion of treatment after his initialplacement at a drug treatment campus. The County Court clearly warned the defendant at theplea proceedings that if, inter alia, he was rearrested pending sentencing, the court would nolonger be bound by its sentencing promise and could impose any sentence permitted by law. Thedefendant acknowledged that he understood. On November 17, 2018, the defendant wasrearrested. On January 8, 2019, the court imposed an enhanced sentence of a determinate term ofimprisonment of 5 years plus a period of postrelease supervision of 2 years on each count, withthe sentences to run concurrently.
The defendant's contention that his plea of guilty was not knowingly, voluntarily, andintelligently entered is unpreserved for appellate review because he did not move to withdraw hisplea or otherwise raise this issue before the County Court (see CPL 220.60 [3]; 470.05[2]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Harden, 175 AD3d 613, 614 [2019]). Contrary to thedefendant's contention, the "rare case" exception to the preservation requirement does not applyhere because the defendant's allocution did not cast significant doubt on his guilt, negate anessential element of the crimes pleaded to, or call into question the voluntariness of his plea(see People v Lopez, 71 NY2d at 666; People v Ramos, 164 AD3d 922, 922-923 [2018]). Moreover, thedefendant's contention that his waiver of the right to appeal was invalid does not, in and of itself,render the plea involuntary (see generally People v Seaberg, 74 NY2d 1 [1989]; People v Barnett, 68 AD3d 888[2009]). In any event, the record demonstrates that the defendant knowingly, intelligently, andvoluntarily waived his right to appeal (see People v Sanders, 25 NY3d 337 [2015]; People v Contreras, 170 AD3d1034, 1035 [2019]), and that the defendant's plea of guilty was knowingly, voluntarily, andintelligently entered (see People vDunkley, 177 AD3d 767, 768 [2019]; People v Coleman, 164 AD3d 518, 519 [2018]).
The defendant's valid waiver of the right to appeal does not preclude review of the issue ofwhether there was a sufficient basis for the County Court to impose an enhanced sentence (see People v Smith, 160 AD3d664, 665 [2018]; People vGregory, 140 AD3d 1088, 1089 [2016]). Contrary to the defendant's contention, thecourt providently exercised its discretion in imposing a sentence greater than what had beenpromised in the original plea and which no longer provided for placement at a drug treatmentcampus to be followed by a 10 year sentence of parole supervision. Since the defendant violatedhis plea agreement by being rearrested, the court was "no longer bound by the plea promise andcould properly impose an enhanced sentence" (People v Jenkins, 11 NY3d 282, 288 [2008], quoting People vFiggins, 87 NY2d 840, 841 [1995]).
The defendant's valid waiver of the right to appeal precludes appellate review of hiscontention that the enhanced sentence was excessive (see People v Perkins, 169 AD3d 936, 937 [2019]). Scheinkman,P.J., Duffy, Connolly and Christopher, JJ., concur.